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Webber v. Virmani

United States District Court, W.D. Virginia, Harrisonburg Division

March 4, 2019

AJAY VIRMANI, et al., Defendants.


          Elizabeth K. Dillon United States District Judge

         Pending before the court are three motions, all of which are fully briefed and were argued before the court at a February 19, 2018 hearing. Two of the three motions are related: both concern whether plaintiff will be permitted to use at trial the late-disclosed opinions of one of its experts, Dr. Stone. On this issue, the court concludes that allowing the new opinions would be overly prejudicial to defendant at this late stage in the case. The court will therefore grant the defendants' motion to exclude the untimely opinions and deny plaintiff's motion for leave to supplement its expert opinions.

         The third motion is a summary judgment motion, which is premised on defendants' assertion that many of plaintiff's allegations of negligence, as set forth in the complaint, are not supported by any of the expert opinions. As the parties agree, the absence of expert opinions is generally, absent “rare” circumstances not applicable here, fatal to a medical malpractice claim under Virginia law. See Beverly Enters.-Va.v. Nichols, 441 S.E.2d 1, 3 (Va. 1994) (“Expert testimony is ordinarily necessary to establish the appropriate standard of care, a deviation from that standard, and that such deviation was the proximate cause of damages.”). Accordingly, any alleged breach of the standard of care that is unsupported by any expert testimony cannot go forward to trial. See Sharpe v. United States, 230 F.R.D. 452, 459 (E.D. Va. 2005) (explaining that because the court was excluding all of plaintiff's expert opinions due to untimely and insufficient expert reports, summary judgment in favor of defendant was warranted). After conducting a careful comparison of the alleged negligence set forth in the complaint and the opinions offered by plaintiff to support those allegations, the court will grant in part and deny in part the motion for summary judgment.

         I. BACKGROUND

         The parties are familiar with the factual background in this medical malpractice action, and thus it is unnecessary to discuss that background in any detail. Instead, the court will focus on the facts relevant to each of the motions in the context of discussing them below.


         A. Motions Regarding Dr. Stone's Supplemental Designations

         1. Background

          This case was originally filed in state court, and significant amounts of discovery had been conducted, including expert discovery. When the case was on the verge of trial, plaintiff took a voluntary non-suit. Afterward, plaintiff refiled the case in this court. The court issued a scheduling order which, as relevant here, contained a number of deadlines related to expert discovery. Pursuant to that order (and including an agreed-upon brief extension), plaintiff timely designated two experts relevant here, neither of whom had been utilized as experts in the state case: Dr. Stone and Dr. Selwyn. Plaintiff's September 26, 2019 designation included expert reports, and defendants do not challenge the timeliness or the sufficiency of the initial expert disclosures.

         On December 13, 2018, in advance of Dr. Stone's deposition, scheduled for December 18, 2018, plaintiff's counsel sent a letter to defense counsel intending to supplement plaintiff's original expert disclosures. The letter contained the following language:

As Dr. Selwyn testified in his recent deposition, these additional documents did not change or alter his expert opinion. His medical opinions provided in the designation remain the same. The same holds true for Dr. Stone, however, you will obviously have the opportunity to question him at his deposition on Tuesday, December 18, 2018.

(Dkt. No. 35-1, at 3.)[1]

         On December 18, 2018, counsel for defendants deposed Dr. Stone. On December 27, 2018 (which was a Thursday at 2:15 p.m.), plaintiff emailed “supplemental expert designations” with additional opinions to be offered by Stone, but no supplemental written report was included. The discovery cut-off date fell on that Sunday, December 30, 2018. Thus, there was effectively one and one-half business days from the supplemental designation to the cut-off of discovery.

         After defendants filed their motion in limine on January 9, 2019, plaintiff sought leave from the court to supplement on January 11, 2019. The proffered supplemental report of Dr. Stone, however, was not provided to defense counsel until February 1.

         As noted, arguments were heard on the pending motions on February 19, 2019. The pretrial conference is scheduled for March 21, and the trial is set to begin on April 5.

         2. Governing Law and Application

          Rule 26(a) requires an expert witness to submit a written report that contains “(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; [and] (iii) any exhibits that will be used to summarize or support them . . . .” The report “should be a comprehensive document that, by itself, provides all the expert's opinions that will be offered at trial, along with the bases for those opinions.” Samsung Elecs. Co. v. ...

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